Prosecutor v. Maher H.

Court	Court of Appeal of The Hague, The Netherlands
Case number	22-005306-14
Decision title	Judgment
Decision date	7 July 2016
Parties	Prosecutor Maher H.
Other names	Context 1
Categories	Terrorism
Keywords	Dissemination, Foreign fighters, intent, Preparation, Terrorist Offence, Training
Links	http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHDHA:2016:1978

Summary

Following his initial conviction in December 2014, Maher H., the first convicted returning Dutch ‘foreign fighter’, was convicted again on 7 July 2016 and sentenced to four years’ imprisonment by the Court of Appeal in The Hague. Maher H., who the Court determined supported the jihad, had travelled to Syria in 2013, where he participated in the armed conflict. The Court found him guilty of: preparing to commit terrorist crimes, including murder and manslaughter; training for terrorism; and disseminating inciting materials, including via sharing videos, documents and posting a photo on social media. In contrast to his initial verdict, Maher H was found guilty of training for terrorism as he had, inter alia, acquired outdoor wear, searched the internet for information about the jihad and participated in the armed conflict. The Court of Appeal did find that these acts had a strong enough link to terrorist training. In contrast to the District Court’s judgment, it did not address the fact that this criminalisation could also potentially lead to the acts that constitute preparing to commit murder and/or manslaughter being punished twice. Similarly, the Court of Appeal disagreed with the District Court as it held that the uploading of pictures of jihadi flags did not constitute a direct or indirect call to commit terrorist crimes.

Procedural history

Maher H. was identified as part of a police investigation, known as ‘Context’, which focused on young people leaving the Netherlands to join the jihadi struggle in Syria. He was charged with preparing to participate in the jihad, joining a jihadi group and disseminating material that incites others to commit terrorist offences.

On 1 December 2014, the District Court in The Hague found enough evidence to convict Maher H. of preparing to commit murder and manslaughter with terrorist intent and creating the opportunity and acquire the means and information to commit murder or manslaughter with terrorist intent. The Court based its decision on the fact that he had actually been to Syria and participated in the armed conflict as well as his support for the jihadi state of mind. The Court also decided Maher H. had disseminated videos, pictures and a document that the Court concluded had an “inciting nature”. He was sentenced to three years’ imprisonment.

Legally relevant facts

Before leaving to Syria

Maher H. and his wife, who he had met on Instagram, were arrested at Rotterdam Central station on 17 July 2013 after their recent marriage. As he was not suspected of any offence at that time, he was immediately released. However, his two sports bags were searched and one of them was found to contain outdoor clothing as well as a black headband displaying a religious Arabic text (para. 8).

In one of his bags, the police found a Sony laptop with a browser history that showed he had visited websites containing information about outdoor clothing, the jihad, Syria, the Taliban and terrorism. Also on his laptop, investigators found songs about jihad and death as a martyr. On top of that, chat messages dating from 28-30 June 2013 were discovered in which the defendant stated that his death was definite and hence that if he were to die during a jihad, “then so be it”. In these messages, he also made direct references to terrorist organisations such as Jabhat al-Nusra, the Islamic State of Iraq and Ansur al-Sharia (para. 8).

A text message from 17 July 2013 likewise showed that he asked for information on how to get to Syria. Maher H. eventually travelled to Syria via Amsterdam, Dusseldorf and Istanbul (para. 8).

During his stay in Syria

On 12 August 2013, during his stay in Syria, the defendant replaced his profile picture on Facebook with a picture of him holding a kalashnikov. On 5 October 2013, he sent a text message to his mother in which he hinted that he had not been able to give her any news for two days because he had been on the battlefield. There was also evidence indicating that, during this period, he had connected to the Wi-Fi networks “Islamic-front” and “Islamic-front 2”. Maher H. eventually left Syria in January 2014 and returned to the Netherlands in February 2014 (para. 8).

After leaving Syria

When the defendant came back to the Netherlands, he changed his Facebook cover picture and profile picture multiple times to replace them with an Islamic caliphate flag and an Al-Qaida flag (para. 8).

On several occasions during the period between 13 and 22 April 2014, he sent videos and photos, which were calls to participate in the jihad, to several of his contacts on WhatsApp. These videos and photos consisted of pictures of armed warriors on horseback, and lectures by sheikhs who approved of the jihad. On one occasion, he also sent a photo with a link to a website that assisted people wanting to go to Syria (ikwilnaarSyrië.nl) (para. 8).

On a Samsung laptop, different documents, images, and files were found containing radical Islamic material, pictures of fighters with Islamic flags, explosions and guns, and information about the jihadi state of mind and martyrdom (para. 8).

Statements

In addition to the above, the defendant made different statements indicating his interest in the Syrian conflict:

The defendant stated he felt it was his obligation to go to Syria and participate in the Jihad (para. 8);
He stated that multiple armed groups (such as ISIS) were active in the area where he was staying. He was also conscious of the fact that acts of war were committed in that region (para. 8); and
Finally, he declared that he had participated in the armed conflict in which he fought against Bashar al Assad’s forces (para. 7.2.1). Along with others, he had to stand guard at the front line with a kalashnikov. He also admitted he had shot such weapons (para. 8).

Core legal questions

Is the defendant guilty of preparing to commit terrorist crimes because of his participation in the armed conflict in Syria?
- Did the defendant intend to prepare to commit terrorist crimes?
- Did the defendant undertake the preparatory acts with terrorist intent?
Did the defendant train for terrorist crimes as mentioned in article 134a of the Dutch Criminal Code (DCC) by trying to create the opportunity, acquire the means, information, knowledge and skills to commit terrorist crimes?
Did the defendant disseminate documents that incite others to commit terrorist crimes?

Specific legal rules and provisions

Articles 14a, 14b, 14c, 14e, 57, 83, 83a, 96 para. 2, 132, 134a, 288a, 289 and 289a of the DCC.

Court's holding and analysis

Preparing to commit terrorist crimes

The Court first confirmed that article 96, para. 2 DCC implied that it was necessary that the acts were committed with the intent of preparing for or facilitating of a terrorist crime (para. 9.2).

The Court held that Maher H. not only aimed to take part in the armed conflict in Syria, but that he actually fulfilled this aim. In combination with his statements, this led the Court to conclude that he had carried out the acts he was accused of (para. 10.1.1), namely:

Visiting websites where he searched for information about purchasing outdoor wear, the jihad, terrorism and related subjects;
Participating in chat messages from 28-30 June 2013 which showed that the defendant wanted to go to Syria in order to participate in the armed conflict because of his religious convictions;
Obtaining documents, texts, pictures and files containing information about jihad and/or martyrdom;
Obtaining information about travelling to Syria from someone in the combat zone who supported ISIS;
Travelling to Syria through Germany and Turkey;
While in Syria, participating in and contributing to the armed conflict; and
Possessing guns and wearing camouflage clothing (para. 5).

- Did the defendant intend to prepare to commit terrorist crimes?

The Court then considered whether Maher H. had the prerequisite intent to prepare to commit terrorist crimes. The Court came to the conclusion that the defendant did have this intent as he participated in the armed conflict which, as he was aware, involves killing adversaries and can lead to civilian casualties. The Court noted that some of his actions are not criminal in and of themselves (such as visiting websites where information about purchasing outdoor material is shared), but that they became illegal in the context of his state of mind and other behaviour, when considered together (para. 10.1.1).

- Did the defendant undertake the preparatory acts with terrorist intent?

To answer the question of whether the defendant had committed preparatory acts with terrorist intent, the Court looked at article 83a DCC and noted that some acts, such as instilling fear on the population through attacks on that population in an effort to destabilise a regime, can never be justified, even if the aim is to overthrow an abject regime.

The initial protests against Assad developed into a civil war in which jihadi groups started to play an increasingly important role. Their goal was to overthrow Assad’s regime and to establish a pure Islamic society, which amounts to:

Unlawfully compelling the Syrian government to act or to refrain from certain acts or to tolerate certain acts;
Destroying Syria’s fundamental political structure; and
Causing fear in the population or a part of the population of Syria.

The Court concluded that all of this information must have been very clear to Maher before he actually travelled to the country to join a terrorist group and to contribute to the violent jihad. Hence, Maher H. prepared to commit murder and manslaughter with terrorist intent as prohibited by article 83a of the DCC (para. 10.1.1).

Training for terrorist crimes

The Court first stated that there must be a link between the acts undertaken by the accused and any form of training for terrorism. Additionally, one could either cooperate as a trainer or participate as a trainee in the context of training for terrorism (para. 10.1.2).

From the evidence, the Court found the following:

Before the defendant travelled to Syria, he acquired outdoor wear, which included the camouflage clothing he was seen wearing during his stay in Syria;
The defendant admitted he participated in the armed conflict and the area he was staying in was under ISIS’ control at the time he was there;
He stood guard at the front line with a kalashnikov and admitted to having shot this weapon. The Court also found that, generally, upon their arrival in Syria, Dutch jihadists are trained in handling weapons and are used as guards during the training period;
He visited websites where he searched for information about the purchase of outdoor wear, the jihad, terrorism and related subjects; and
On his laptop, the police found songs about jihadism and/or martyrdom (para. 10.1.2).

Since the Court had decided earlier (para. 10.1.1) that the defendant had prepared to commit murder and manslaughter with terrorist intent, the Court also decided that the defendant had the intent to use the acquired skills to commit terrorist crimes (para. 10.1.2).

From the above, the Court came to the conclusion that the defendant’s acts combined with his state of mind and his statements were sufficient to find him guilty of acquiring skills to commit terrorist acts (para 10.1.2).

Dissemination of inciting documents

To be convicted of disseminating inciting material, the Court held it had to be the dissemination of more than one copy of the material and that it had to be disseminated to multiple people. However, the dissemination need not be done publicly (para. 9.4).

The Court also added that when determining whether a document is inciting in nature, it is necessary to balance the potential restriction of speech with the freedom of speech contained in article 10 of the European Convention on Human Rights (ECHR). It added that article 132 of the DCC constitutes a statutory restriction of the freedom of speech that is permitted by the ECHR and necessary in a democratic society (para. 9.4).

Partial acquittal

Like the District Court, the Court of Appeal held that the defendant had to be acquitted of disseminating inciting documents with regard to the chat messages, songs, some of the images of him and the poster (para. 10.2.1).

The Court of Appeal however disagreed with the District Court regarding the uploading of pictures of jihadi flags. According to the Court of Appeal, it did not constitute a direct or indirect call to commit terrorist crimes (para. 10.2.1).

Conviction

Finally, the Court of Appeal held that the defendant was guilty of disseminating jihadi YouTube movies and documentation through WhatsApp, and of putting an inciting picture on social media where he is displayed with a kalashnikov (para. 10.2.2).

Final Convictions and Sentence

The Court thus held that Maher H. prepared to commit terrorist crimes with terrorist intent.

It also came to the conclusion that the defendant trained for terrorist crimes and more precisely that he was guilty of acquiring skills to commit terrorist acts.

Finally, Maher H. was found to have disseminated jihadi YouTube movies and documentation through WhatsApp, as well as to have put an inciting picture on social media where he is displayed with a kalashnikov.

For all these offences, the Court of Appeal of the Hague, sentenced him to four years’ imprisonment.

Further analysis

C. Paulussen and E. Entenmann, ‘National Responses in Select Western European Countries to the Foreign Fighter Phenomenon’, in: A. de Guttry, F. Capone and C. Paulussen, Foreign Fighters under International Law and Beyond’, T.M.C. Asser Press/Springer Verlag, 2016, p. 414.
M. Zwanenburg, ‘Foreign Terrorist Fighters in Syria: Challenges of the “Sending” State’, International Law Studies, Volume 92 (2016), p. 209.